Welfare of J.W., Matter of

• Decision Date: 17 September 1985
• Docket Number: Nos. C8-85-119,C9-85-131,s. C8-85-119
• Citation: 374 N.W.2d 307
• Parties: In the Matter of the WELFARE OF J.W. and A.W.
• Court: Minnesota Court of Appeals

Page 307

374 N.W.2d 307

In the Matter of the WELFARE OF J.W. and A.W.

Nos. C8-85-119, C9-85-131.

Court of Appeals of Minnesota.

Sept. 17, 1985.

Review Denied November 18, 1985.

Syllabus by the Court

When appellants declined to answer deposition questions on fifth amendment grounds, it was coercive and unconstitutional to impose discovery sanctions which deprived them of their due process rights under the U.S. Constitution and the Constitution of Minnesota.

Hubert H. Humphrey, III, Atty. Gen., St. Paul, Thomas L. Johnson, Hennepin Co. Atty., Ann Stiehm Ahlstrom, Asst. Co. Atty., Minneapolis, for respondent.

Thomas H. Shiah, William R. Kennedy, Hennepin Co. Public Defender, David M. Duffy, Asst. Public Defenders, Minneapolis, for appellant.

Wright Walling, Randy L. Decker, Minneapolis, for Guardian ad Litem.

Heard, considered and decided by POPOVICH, C.J., and PARKER and CRIPPEN, JJ.

OPINION

CRIPPEN, Judge.

This is the consolidated appeal of two parents from an order finding that their two children, J.W. and A.W., were dependent and neglected, and ordering that the children be placed in foster care.

FACTS

Appellants have two children, A.W., age two, and J.W., age three. H.L., the two-year-old nephew of the appellants, came to stay with appellants. A week later, appellants brought him to the hospital. His abdomen was seriously injured, and he died a few days later. The county brought a petition alleging that appellants' children were dependent and neglected. After a trial, the court found that the children were at risk and were both dependent and neglected. No criminal prosecution has been initiated.

Appellants appeared at a court-ordered deposition on July 25, 1984. Both refused to answer substantive questions, directed mainly toward H.L.'s death, on fifth amendment grounds. The court ordered sanctions for failure to comply with discovery, including taking as established the matters which appellants refused to address, and denying appellants the opportunity to oppose those matters. At trial, appellants were not allowed to challenge the state's case by presenting evidence or testimony from witnesses regarding these matters, and could not cross-examine any of the state's witnesses.

The state presented testimony by a physician who examined and treated H.L., a social worker who was present at an interview of appellants by a police officer, and the Hennepin County medical examiner.

The trial court found that one or both appellants caused H.L.'s death because the infliction of the injury was not accidental, the severity indicated adult-like strength, and the appellants were the only adults present in their home from the evening of September 14 through the time they departed to bring H.L. to the hospital. It was found that appellants did not give the hospital an accurate medical history, and therefore did not aid in his expeditious receipt of proper treatment. The court found that the parties have a history of violence with each other, based on the statements in the mother's affidavit in support of a domestic abuse petition.

The court found that because of the parties' history of violence, the unexplained violent homicide of a two-year-old child for whom the appellants were responsible, and the children's tender years and natural vulnerability, J.W. and A.W. are at high risk for physical abuse.

Dependency and neglect findings were based on provisions of Minn.Stat. § 260.015, subd. 6(d) and § 260.015, subd. 10(b).

ISSUE

Did the trial court err in its choice of discovery sanctions, where appellants' refusal to answer discovery questions was based on their fifth amendment right not to incriminate themselves?

ANALYSIS

The appellants invoked the fifth amendment and refused to answer questions put to them at a court-ordered deposition regarding the circumstances of H.L.'s injury and death. Under juvenile court rules, if a party fails to obey a discovery order, the court may take such actions "as are just," including:

(a) an order that the matters regarding which the order was made, or any other designated facts, shall be taken to be established for purposes of the proceeding, in accordance with the claim of the participant who obtained the order, or

(b) an order refusing to allow the disobedient participant to support or oppose designated claims, or prohibiting the disobedient participant from introducing designated matters in evidence, or

(c) an order striking the petition or parts thereof, or staying further proceedings until the order is obeyed or dismissing the proceeding or any part thereof, or rendering a judgment by default against the disobedient participant, or

(d) in lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders except an order to submit to a physical or mental examination.

Minn.R.Juv.Ct.P. 57.10, subd. 4 (1984).

The trial court here acted under subdivision (a) and (b) of the rule, ordering:

1. That the matters regarding which [appellants] invoked their Fifth Amendment right are taken as established for purposes of this proceeding in accordance with the claim of [the state].

2. That [appellants] shall not be allowed to oppose those matters regarding which they invoked their Fifth Amendment right.

At trial, this order was interpreted to mean that appellants could not challenge the state's case by presenting evidence of their own, could not present testimony from witnesses regarding those matters, and could not cross-examine any of the state's witnesses. Appellants challenge the constitutionality of this application of Rule 57.10, subd. 4; they do not question the constitutionality of the rule.

The fifth amendment right against self-incrimination may be invoked in civil as well as criminal proceedings. In Minnesota, it may be asserted at any stage of a civil proceeding. Parker v. Hennepin County District Court, Fourth Judicial District, 285 N.W.2d 81, 82-83 (Minn.1979). To invoke the right in civil proceedings, it must be evident that the party's testimony "would enhance the threat of criminal prosecution such that reasonable grounds exist to apprehend its danger." Id. at 83. Appellants, who could be subject to criminal charges for H.L.'s death, properly invoked the fifth amendment.

Parker cautioned that while the policies underlying the fifth amendment must be safeguarded, this does not permit exploitation of the privilege "to unfairly prejudice an adversary in a civil case." Id. One who seeks relief cannot "eat his cake and have it too," and his choice to invoke the fifth amendment justifies dismissal of his claim. Christenson v. Christenson, 281 Minn. 507, 521, 162 N.W.2d 194, 203 (1968). Similarly, where a witness claims the privilege in a civil case, his testimony may be stricken. Id. at 515, 162 N.W.2d at 199. This limit on interdiction of the privilege is more compelling when a plaintiff supports a claim with a partial disclosure of facts; a more subtle response is required toward a defendant's assertion of the privilege, because he participates involuntarily, but a defendant will not be permitted to "gain an unfair advantage" by withholding important information. Parker, 285 N.W.2d at 83; see Christenson, 281 Minn. at 518, 162 N.W.2d at 201. Allowing discovery sanctions in some situations "[does] not punish a defendant for his assertion of the privilege, but for his failure to answer as he typically would under normal circumstances." Parker, 285 N.W.2d at 83.

The court held in Parker that defendants need not respond to requests for admission since the fifth amendment was properly invoked, but "for a court to deem an answer admitted does not violate the constitutional safeguard against self-incrimination. Moreover, doing so bolsters the rationale behind Minnesota's rules of civil discovery." Id. at 84. The supreme court found that deeming a discovery allegation admitted is no different than allowing an adverse inference from a refusal to answer, a sanction approved by the United States Supreme Court. Id. See Baxter v. Palmigiano, 425 U.S. 308, 318, 96 S.Ct. 1551, 1558, 47 L.Ed.2d 810 (1976); see Ralph Hegman Co. v. Transamerica Insurance Co., 293 Minn. 323, 198 N.W.2d 555 (1972).

Here, therefore, the trial court could deem the answers to the depositions admitted. It should be noted that those answers alone would be insufficient to find against appellants; there must be substantial other evidence on the record to support the decision. Baxter, 425 U.S. at 317, 96 S.Ct. at 1557. In this case there was substantial evidence which would support the trial court's findings.

Appellants contend, however, that denial of the right to confront and cross-examine adverse witnesses or to present their own evidence denied them due process rights. See U.S. Const. amend. XIV; Minn. Const. art. I, § 7. The due process standard in juvenile proceedings is "fundamental fairness." McKeiver v. Pennsylvania, 403 U.S. 528, 543, 91 S.Ct. 1976, 1985, 29 L.Ed.2d 647 (1971).

We have held in a parental termination matter that it "violates fundamental fairness" to deny a parent's opportunity to present testimony on his own behalf and to confront and examine witnesses appearing against him. In re Welfare of L.J.B., 356 N.W.2d 394, 397 (Minn.Ct.App.1984). The United States Supreme Court has stated:

In almost every setting where important decisions turn on questions of fact, due process requires an opportunity to confront and cross-examine adverse witnesses.

Goldberg v. Kelly, 397 U.S. 254, 269-70, 90 S.Ct. 1011, 1021-22, 25 L.Ed.2d 287 (1970) (citations omitted). Likewise, due process commonly requires the opportunity to be heard, which includes the opportunity to present evidence. Id....